How Attorney-Client Privilege Works

Prosecutors in President Donald Trump's personal attorney Michael Cohen's case say that, because Cohen was "performing little to no legal work", not much of what was seized in an April 2018 FBI raid would be protected by attorney-client privilege. Spencer Platt/Getty Images

In 1993, Vincent W. Foster Jr., former White House aide in the Clinton Administration, was found dead of an apparent suicide. Foster had worked closely with the Clintons in Arkansas and followed them to Washington, D.C. where he seems to have fallen into a clinical depression. In the following years, as independent counsel Kenneth Starr waded into an investigation of the now infamous Whitewater real estate deal, he tried to get his hands on several pages of notes created by Foster's lawyer. The lawyer refused, citing attorney-client privilege, and the case went all the way to the U.S. Supreme Court. There, the court ruled 6-3 that the privilege must be honored in the case, even though Foster was dead [source: American Bar Association].

Of course, Bill Clinton is not the only U.S. president to be embroiled in the question of attorney-client privilege. In April 2018, the FBI raided the offices and hotel room of Michael Cohen, one of President Donald Trump's long-time personal lawyers. The FBI seized documents of all kinds, looking for evidence of bank fraud. It quickly emerged that the raid was connected to special counsel Robert S. Mueller III's investigation of President Trump's ties to Russia. When Trump was informed of the raid, he angrily responded that it was part of a "witch hunt" [source: Apuzzo]. Later, he tweeted that, "Attorney-client privilege is dead!"

"Attorney-client privilege is not dead," attorney Stewart says. The courts, he says, are following the usual legal practice. As typically happens, the judge has, in the Cohen case, appointed what's known as a taint team, to go through the evidence gathered and decide which material pertains to the case at hand, and which doesn't. That team will then pass on the pertinent information, while excluding what remains irrelevant. This taint team is a third-party, arms-length group of qualified people who are not involved with anybody in the investigation.

"It's not perfect," says Stewart, "you're relying on the kindness of strangers, but it's considered a workable solution to the problem. And, if anything, the judge in this case has gone above and beyond the usual practice by allowing Cohen's lawyers to also look through the material seized."

Prosecutors in the Cohen case also say that, because he was "performing little to no legal work" for Trump, not much of what was seized in the raid would be protected by attorney-client privilege [source: Parks].

"Attorney-client privilege," Stewart says, "is alive and well."

Author's Note: How Attorney Client Privilege Works

It's intriguing to me how many of our legal traditions, like attorney-client privilege, stem from ancient practices that long predate the Constitution. I think many of us forget that in England and all the countries once colonized by it, we use common law, not civil law. So, our law isn't codified, it's a fundamentally historical, evolving collection of decisions made over the centuries. In that sense, our law resembles the English language itself, which has no hard and fast code, but is instead an elastic set of traditional practices evolving through time.

Johnson, Kevin. "Attorney-client privilege: It's all over the news but how does it work?" USA Today. April 17, 2018. (June 8, 2018) https://www.usatoday.com/story/news/politics/2018/04/17/attorney-client-privilege-its-all-over-news-but-what-lay-manlegal-primer/523855002/